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Abstract
The current article wants to treat the genesis of subjective rights, especially
the fundamental human rights and identifying the four generations of rights
as they appeared during time. A very important problem is represented also
by the conflict between the generations of rights due to the process of
multiplying them.
Key words
Professional self-governance; legal norm; judicial review.
In ancient times, the balance between the individual (citizen) and social
group (state) was clearly in favor of the state. Individual rights were
subordinated to the interest of the "fortress". This was the situation for the
people who enjoy the status of citizen, for all other social classes or
foreigners (barbarian people themselves), the situation was much more
dramatic. In the medieval period, personal safety and private property were
at the arbitrary disposal of the sovereign who had absolute rights without
limits, the right to life and death over their subjects. This period generally is
characterized by the existence of the right to force itself and not the force of
law, subordinating rights of circumstance, to servitude towards the absolute
monarch (monarchy by divine right). Under these conditions, individual
rights were at the discretion of the ruling class, the senior pyramid to the
monarch. In terms of the history of law, and general theory of law, this
evolution may be surprised by the evolution of the generations of subjective
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human rights. In essence, the evolution of generations of rights is a return, a
refund of duties previously delegated to Hobbes's sovereign or government,
citizen and civil society. On the other hand, represents a return to the
jusnaturalist conception of subjective rights and to the valorization of
persons in a juridical sense, as a human being.
1Silvia Castignone, Introduzione alla filosofia del dirito, Ed. Laterza, Roma, 2004, p. 198
Dny práva – 2009 – Days of Law: the Conference Proc eedings, 1. edition.
Brno : Masaryk University, 2009, ISBN 978-80-210-4990-1
Once time passed and ideas and concepts about state were developed,
political power, and right and freedom (the works of philosophers John
Locke, Ch Montesquieu, Th. Hobbes, JJ Rousseau), appeared a fight against
monarchical absolutism, struggle which will be successful, success
expressed by documents with legal force as:
3. there were supported and declared the freedom of speech, that freedom of
thought and the right to petition;
It is considered that the Declaration of human and citizens rights from 1789
expresses in the best way the idea that there are inherent human rights, rights
that are exercised in a state which is not an end in itself, but only a mean to
ensure coexistence of individuals and the exercise of individual rights. For
this reason, it is estimated that it is an expression of the first generation of
subjective rights. The French Declaration of Human and Citizens Rights
from 1789 contained two new ideas:
2. The second idea is that the "purpose of all political associations is the
preservation of the natural and indefeasible rights of man" (Article 2 of the
Declaration).
There are two categories of rights which the Declaration of Human and
Citizens Rights from 1789 is referring to:
- The right to personal security in relation to justice and police (art. 7-9)
These rights represent the first generation of subjective rights, and more
precisely those rights that refer to personal autonomy of the individual and
the rights that enable citizen participation in power in a society where "the
exercise of natural rights of each man has no limits, than those which ensure
for the other members of society the same rights" (article 4). In the modern
age, these rights have found their consecration in constitutions and in the
laws of most countries, as well as in international documents. Among them
we mention:
2. freedom of association;
4. the right to insurance for sickness, old age and disability (Social
insurance).
These rights come from positive law, as well as from international law
(International Covenant on Economic, social and cultural). This dedication
has not the same coverage, as in the case of first generation rights, as
consecration requires significant effort from the State and so it is appropriate
to everyone’s prosperity. The second generation of rights, against the first
generation of rights requires institutional support from the state, the first
generation rights can be exercised independently and singular. The state
must intervene through legislation to create an institutional system that
allows the exercise, for example, of the right to education or retirement. It is
estimated that if the first generation rights form "free status”, social
economic rights are related to the “social status” of the individual.In the
system of rights that belong to the second generation and protected by The
Dny práva – 2009 – Days of Law: the Conference Proc eedings, 1. edition.
Brno : Masaryk University, 2009, ISBN 978-80-210-4990-1
In the paper "Legal Sociology”, Mrs. Professor Sofi a Popescu treats the
sociology of human rights and when she refers to the rights from the third
generation of social rights she presents Norberto Bobbio's view, which
asserted the importance of research “ for applying effective legal rules which
affirm, recognize, define and assign human rights. It was given the example
of the rules from the Italian Constitution which enshrines social rights which
were called bashful as "programmatic" and that do not command, prohibit
and allow hic et nunc, but command, prohibit and allow for future, without a
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certain overdue "
The same situation is found in the Romanian legal system and this way it
appears to be more legitimate and interesting the question regarding the
nature of these rights: they have the nature of rights in themselves or of
moral or political goals, of some good intentions and goals of the future?
In this category we can identify the so called solidarity rights, rights which
can not be exerted only by an individual, but only collectively, like:
5. environmental law;
The rights in this category can not be exerted individually, but only by
groups or collectivities of people. The third generation rights require not
only the need to create an institutional support by the State, but, as in the
case of second generation rights, they need to restrict the first generation of
rights, through a so called “positive discriminatio n”, in the sense that these
rights , like the rights of any minority, require a limitation of rights of first
generation. The environmental law allows social groups to live in a healthy
environment, clean, without harmful agents to health but, in the same time,
involves a number of limitations of rights of first or second generation, like
owning a forest or the right to work.
In the Romanian environmental law through the Water Law no. 137/1995
(subsequently repealed by Emergency Ordinance no. 195 of December 22,
2005) on environmental protection, we find an express reference to the
rights of future generations, when the legislature defining the concept of
"sustainable development" said that it is "a development that meets the
needs of present without compromising the ability of future generations to
meet theirs "- (Art. 1)
There are laws that recognize different and in some proportions, the
existence and exercise of this kind of rights, environmental rights, rights of
minorities. Romania is one of the countries that have recognized the great
importance of third generation rights. We have the right to environment, the
right of ethnic and sexual minorities (their substantial base being put after
1990, in the approach to join the Council of Europe and integration in the
European Union, and harmonization of national legislation with
international documents of the two regional organizations).
Dny práva – 2009 – Days of Law: the Conference Proc eedings, 1. edition.
Brno : Masaryk University, 2009, ISBN 978-80-210-4990-1
We could put in the same category the so called rights of future generations,
as well as rights that can not belong to an individual nor to social groups,
including nations, they belong only to humanity as a whole. The rights of
humanity would treat the common assets of the whole humanity.
Thus, each person has its right to life, dignity, personal identity, closely
linked to its genetic type configuration, unique, right which it can transmit
as genetic heritage to descendants, without being subject to genetic
manipulation. From this perspective, human organ donation is prohibited.
The central idea is that human being should not be genetically influenced, in
any way. There are mentioned Nazi ideas about the superiority of a race
which required the elimination of others, ideas embodied legal (and factual)
in laws of euthanasia of mentally ill, the sterilization of persons with
hereditary abnormalities, the bastards sterilization or prohibiting interethnic
marriages. Just to avoid doing the same thing in history, the international
community has proclaimed the fact that human genome is part of the human
heritage.
2. stipulates the obligation of States to defend the person and its dignity,
regardless of its genetic characteristics;
In the debate are issues of assisted euthanasia (the right to die in peace and
dignity), maintaining artificial life after brain death, sterilization, fetal status,
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infanticide (late abortion) .
1. of positivation.
2. of generalization.
3. of internationalization.
4. of specialization.
After the second world war, as a response to atrocities of the war and to
affecting of human person, both in civil society, as well as in institutional,
national and international level, humanity has sought to assert its valences
and to obtain legal recognition and protection of its sacred values. So,
appeared more demands from the individual, as well as from groups of
individuals, demands which evolved and took up the legal form of
subjective rights, the State recognizing and protecting them . What is
characteristic of the postwar period is the multiplying and
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institutionalization of human rights. In the doctrine this legal and factual
reality is undergoing critics:
4 See in the same sense, Duculescu Victor, Juridical protection of human rights.
Internal and international means, Ed. Lumina Lex, p. 294-306
Under the name of human rights there were to be affirmed, recognized and
protected in national and international level, a number of rights of first and
second generation rights. Subsequently, the concept of human rights had to
be included rights of the third generation.
From the generations of rights only a part was defined as human rights.
After a socio-legal criterion, the latter are different from the other subjective
rights for two reasons:
So, the concern and obligation to organize the equilibrium of the exercise of
subjective rights go to the State (and not only, also to the civil societies
which may bring their own contribution). They must bring accord between
the persons’ interests (civil and political rights of first generation of rights)
and the communities’ interests (social solidarity rights from the second
generation of rights). Such a State is the State of Rights and in a modern
conception The Social State of Rights.
7 Sofia Popescu, General Theory of Rights, Ed. Lumina Lex, Bucharest, 2000, p.356
8 See the Treaty of institution of a Constitution for Europe, Ed. of the European
Institute from Romania, Bucharest, 2005, p. 17, 19, 41.
Dny práva – 2009 – Days of Law: the Conference Proc eedings, 1. edition.
Brno : Masaryk University, 2009, ISBN 978-80-210-4990-1
considering the responsibilities and duties which they imply for a third party
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and for the human community and future generations.
Contact – email
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